2015

The High Court of Australia unanimously dismissed the appeal in Minister for Immigration and Border Protection v WZARH [2015] HCA 40. I posted previously on the decision of the Full Federal Court. Readers will recall the issue: a refugee claimant was interviewed by one Reviewer and was told that this Reviewer would make a recommendation, […] Read more

Another volley of thoughts on section 96….In previous posts I set out the Supreme Court’s view of the importance of the “core” jurisdiction of the superior courts but then noted the need to make some qualifications to this view. In this post, I set out some serious qualifications that the Supreme Court’s own jurisprudence has […] Read more

I have written before about the constitutionality of Prime Minister Trudeau’s plan to reinvigorate the Canadian Senate. I commented that one of the odd consequences of the Supreme Court of Canada’s decision in Reference re Senate Reform, [2014] 1 S.C.R. 704 is that measures that “are not placed on a statutory footing are less likely […] Read more

* I have been working on this post for a couple of weeks now, since the decision was handed down on October 30. It has only now been published * Sometimes one may wonder whether administrative law doctrine really matters — and, moreover, whether my regular complaints are well-placed. Are things really all that bad? […] Read more

Following on from my first s. 96 entry, here are some sceptical thoughts about what the protected “core” might mean today…. Yet these judicial references to a protected “core” that is beyond the reach of the legislative and executive branches have to be reconciled with the realities of modern litigation. Earlier cases set up tribunals […] Read more

In a recent report, The Value and Effects of Judicial Review: The Nature of Claims, their Outcomes and Consequences, Varda Bondy, Lucinda Platt and Maurice Sunkin challenge “widely held and influential assumptions about the costs and misuse of JR” in Britain. On the contrary, they find, for instance: JR claimants often win tangible benefits, such […] Read more

I am working on a paper on s. 96 of the Canadian Constitution. Here is a first taste of a very first draft…. Section 96 of the Constitution Act, 1867 seems innocuous – an “uninstructed reading of the section itself” reveals little[1] – providing simply that judges of the superior courts (and the now defunct […] Read more

In advance of Friday’s roundtable on consistency in tribunal decision-making I have posted the text of my paper to SSRN. Download it here. Here is the abstract: “When the facts change, I change my opinion,” John Maynard Keynes once tartly replied to a questioner concerned that the economist had altered his position on a matter […] Read more

Canadian courts have sometimes described undeferential reasonableness review as “disguised correctness”, cases in which a court says it is applying a reasonableness standard but in fact performs its own analysis of the law and the facts to reach an independent conclusion that it labels ‘reasonable’ or ‘unreasonable’. Here are some examples of judicial uses of […] Read more

Blogging is likely to be light for the next couple of weeks, as my list of speaking engagements implies. There is also the small matter of a graduation ceremony on November 2 for which my office is responsible, as well as the usual array of administrative and writing commitments. If you have not already registered […] Read more